E7-23386. Approval and Promulgation of Air Quality Implementation Plans; Virginia; Amendments Extending the Applicability of Four Consumer and Commercial Product Regulations to the Fredericksburg Volatile Organic Compound (VOC) Emissions Control Area

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is approving a State Implementation Plan (SIP) revision submitted by the Commonwealth of Virginia. This revision consists of amendments to extend the geographic applicability of four consumer and commercial product regulations—Portable Fuel Container Spillage, Mobile Equipment Repair and Refinishing Operations, Architectural and Industrial Maintenance Coatings, and Consumer Products—to the Fredericksburg VOC Emissions Control Area. These amendments are necessary to implement VOC contingency measures within the Fredericksburg Area. The revision also incorporates by reference two additional test methods and procedures needed for Virginia's Architectural and Industrial Maintenance Coatings Rule. EPA is approving this revision to the Virginia SIP in accordance with the requirements of the Clean Air Act (CAA).

DATES:

Effective Date: This final rule is effective on January 4, 2008.

ADDRESSES:

EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2007-0479. All documents in the docket are listed in the www.regulations.gov Web site. Although listed in the electronic docket, some information is not publicly available, i.e., confidential business information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through www.regulations.gov or in hard copy for public inspection during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the Virginia Department of Environmental Quality, 629 East Main Street, Richmond, Virginia, 23219.

FOR FURTHER INFORMATION CONTACT:

Ellen Wentworth, [phone], or by e-mail at [e-mail].

SUPPLEMENTARY INFORMATION:

I. Background

On September 12, 2007 (72 FR 52028), EPA published a notice of proposed rulemaking (NPR) for the Commonwealth of Virginia. The NPR proposed the approval of amendments extending the geographic applicability of four consumer and commercial product regulations to the Fredericksburg VOC Emissions Control Area. The formal SIP revision was submitted by the Commonwealth of Virginia on May 14, 2007.

II. Summary of the SIP Revision

The May 14, 2007 SIP revision contained regulation amendments to 9 VAC 5 Chapter 40 that extended the geographic applicability of four consumer and commercial product regulations—Portable Fuel Container Spillage, Mobile Equipment Repair and Refinishing, Architectural and Industrial Maintenance Coatings, and Consumer Products—into the new Fredericksburg VOC Emissions Control Area established in 9 VAC 5-20-206 (March 2, 2007, 72 FR 9441). These regulations had formerly applied only in the Northern Virginia VOC Emissions Control Area, and were based on the Ozone Transport Commission (OTC) model rules. The OTC developed control measures into model rules for a number of source categories and estimated emission reduction benefits from implementing those model rules. These regulations are necessary to implement VOC contingency measures within the Fredericksburg VOC Emissions Control Area. The revision also adds six additional specialty coatings to the Architectural and Industrial Maintenance Coatings regulation. Other specific requirements of Virginia's SIP revision and the rationale for EPA's proposed action are explained in the NPR and will not be restated here. No public comments were received on the NPR.

III. General Information Pertaining to SIP Submittals From the Commonwealth of Virginia

In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information (1) that are generated or developed before the commencement of a voluntary environmental assessment; (2) that are prepared independently of the assessment process; (3) that demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) that are required by law.

On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by Federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce Federally authorized environmental programs in a manner that is no less stringent than their Federal counterparts* * * * .” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by Federal law to maintain program delegation, authorization or approval.”

Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by Federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any Federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with Federal law, which is one of the criteria for immunity.”

Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its program consistent with the Federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on Federal enforcement authorities, EPA may at any time invoke its authority under the CAA, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the Clean Air Act is likewise unaffected by this, or any, state audit privilege or immunity law.

IV. Final Action

EPA is approving a revision to the Commonwealth of Virginia SIP, extending the geographic applicability of four consumer and commercial product regulations—Portable Fuel Container Spillage, Mobile Equipment Repair and Refinishing Operations, Architectural and Industrial Maintenance Coatings, and Consumer Products—to the Fredericksburg VOC Emissions Control Area. EPA is also approving the incorporation by reference of two additional test methods and procedures needed for Virginia's architectural and Industrial Maintenance Coatings Rule.

V. Statutory and Executive Order Reviews

A. General Requirements

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal requirement, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it approves a state rule implementing a Federal standard.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

B. Submission to Congress and the Comptroller General

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

C. Petitions for Judicial Review

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 4, 2008. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action, expanding the geographic applicability of four consumer and commercial product regulations to the Fredericksburg VOC Emissions Control Area, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Incorporation by reference
• Nitrogen dioxide
• Ozone
• Reporting and recordkeeping requirements
• Volatile organic compounds

Dated: November 20, 2007.

Donald S. Welsh,

Regional Administrator, Region III.

40 CFR part 52 is amended as follows:

PART 52—[AMENDED]

1. The authority citation for 40 CFR part 52 continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

Subpart VV—Virginia

2. In § 52.2420, the table in paragraph (c) is amended by revising the entries for Chapter 40, Part II, Sections 5-40-5700, 5-40-5720, 5-40-5750, 5-40-6970, 5-40-7050, 5-40-7120, 5-40-7130, 5-40-7140, 5-40-7210, 5-40-7240, 5-40-7250, 5-40-7260, 5-40-7270, 5-40-7300, 5-40-7330, and 5-40-7360. The table in paragraph (e) is amended by adding an entry for Documents Incorporated by Reference after the eighth existing entry for Documents Incorporated by Reference. The amendments read as follows:

§ 52.2420

Identification of plan.

* * * * *

(c) * * *

EPA-Approved Virginia Regulations and Statutes

State citation (9 VAC 5)	Title/subject	State effective date	EPA approval date	Explanation [former SIP citation]
*       *       *       *       *       *       *
Chapter 40 Existing Stationary Sources (Part IV)
*       *       *       *       *       *       *
Part II Emissions Standards
*       *       *       *       *       *       *
Article 42 Portable Fuel Container Spillage (Rule 4-42)
5-40-5700	Applicability and designation of affected facility	10/04/06	12/05/07 [Insert page number where the document begins]	Revision extends the applicability to include the Fredericksburg VOC Emissions Control Area.
*       *       *       *       *       *       *
5-40-5720	Standard for volatile organic compounds	10/04/06	12/05/07 [Insert page number where the document begins]
*       *       *       *       *       *       *
5-40-5750	Compliance schedules	10/04/06	12/05/07 [Insert page number where the document begins]
*       *       *       *       *       *       *
Article 48 Mobile Equipment Repair and Refinishing Operations (Rule 4-48)
5-40-6970	Applicability and designation of affected facility	10/04/06	12/05/07 [Insert page number where the document begins]	Revision extends the applicability to include the Fredericksburg VOC Emissions Control Area
*       *       *       *       *       *       *
5-40-7050	Compliance schedule	10/04/06	12/05/07 [Insert page number where the document begins]
*       *       *       *       *       *       *
Article 49 Architectural and Industrial Maintenance Coatings (Rule 4-49)
5-40-7120	Applicability and designation of affected facility	10/04/06	12/05/07 [Insert page number where the document begins]	Revision extends the applicability to include the Fredericksburg VOC Emissions Control Area.
5-40-7130	Definitions	10/04/06	12/05/07 [Insert page number where the document begins]	Revision adds definitions for the following: ASTM, Calcimine recoater,Concrete surface retarder, Conversion varnish, Impacted immersion coating, Nuclear coatings, and Thermoplasftic rubber coating and mastic.
5-40-7140	Standard for volatile organic compounds	10/04/06	12/05/07 [Insert page number where the document begins]	Revision adds standards for the following categories: Calcimine recoaters, Conversion varnishes, Concrete surface retarder, Impacted immersion coatings, Nuclear coatings, and Thermoplastic rubber coating and mastic.
*       *       *       *       *       *       *
5-40-7210	Compliance schedules	10/04/06	12/05/07 [Insert page number where the document begins]
*       *       *       *       *       *       *
Article 50 Consumer Products (Rule 4-50)
5-40-7240	Applicability	10/04/06	12/05/07 [Insert page number where the document begins]	Revision extends the applicability to include the Fredericksburg VOC Emissions Control Area.
5-40-7250	Exemptions	10/04/06	12/05/07 [Insert page number where the document begins]
5-40-7260	Definitions	10/04/06	12/05/07 [Insert page number where the document begins]
5-40-7270	Standard for volatile organic compounds	10/04/06	12/05/07 [Insert page number where the document begins]
*       *       *       *       *       *       *
5-40-7300	Administrative requirements	10/04/06	12/05/07 [Insert page number where the document begins]
*       *       *       *       *       *       *
5-40-7330	Compliance schedules	10/04/06	12/05/07 [Insert page number where the document begins]
*       *       *       *       *       *       *
5-40-7360	Notification, records and reporting	10/04/06	12/05/07 [Insert page number where the document begins]

(e) * * *

* * * * *

Name of non-regulatory SIP revision	Applicable geographic area	State submittal date	EPA approval date	Additional Explanation
*       *       *       *       *       *       *
Documents Incorporated by Reference (9 VAC 5-20-21, Paragraphs E.4.a. (21) and (22)).	Fredericksburg VOC Emissions Control Area Designated in 9 VAC 5-20-206	05/14/07	12/05/07 [Insert page number where the document begins]	State effective date is 10/04/06.
*       *       *       *       *       *       *